Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals

For years, the nation’s highest court has devoted the majority of its criminal justice efforts to ensuring that defendants get a fair day in court and a fair sentence once a trial is concluded. But in two decisions on Wednesday, the Supreme Court tacitly acknowledged that it has been enforcing an image of the system that is very different from the real, workaday world inhabited by prosecutors and defense lawyers across the country.

In that world, 97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence. Courtroom trials, the stuff of television dramas, almost never take place.

Ronald F. Wright, a professor of law at Wake Forest University, said that for generations plea bargains have been the rule rather than the exception, “and the Supreme Court has, until the last two or three years, found a way to ignore that.”

Professor Wright likened the court’s decisions on Wednesday to “Rip Van Winkle waking up. He looks around and says, ‘Wow, when I went to sleep the world was full of trials.’ ”

The decisions, endorsed by a 5-to-4 majority and written by Justice Anthony M. Kennedy, affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. Both of the cases before the court involved defendants who failed to take plea bargains after receiving bad legal advice.

Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with so little oversight that one law professor, Stephanos Bibas of the University of Pennsylvania, has compared it to a Turkish bazaar.

Reacting to the decisions, legal scholars on Thursday used words like “huge” and “bold” to describe them. “I can’t think of another decision that’s had any bigger impact than these two are going to have over the next few years,” Professor Wright said. Perhaps how bold was reflected in the intensity of Justice Antonin Scalia’s scathing dissent, which excoriated the court for elevating the “necessary evil” of plea bargains into “a constitutional entitlement.”

But what legal experts seemed to agree on was that it was difficult to gauge what concrete effects the rulings would have on everyday legal practice.

Professor Bibas said that they would probably lead to a flurry of postconviction filings by people who believed their lawyers were at fault for their failure to get a better deal. “But very few of them will succeed,” he said. “Courts are very good at tossing these cases out.”

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Source: Ronald F. Wright and Paul Hofer analysis of Bureau of Justice Statistics dataCredit
The New York Times

The rulings, he added, might also result in requirements that plea offers be put in writing — something that Justice Kennedy noted was already the case in Arizona. While many states require plea agreements to be written and presented before a judge, plea offers are often verbal and made in informal settings.

More significant, Professor Bibas said, was the symbolic importance of the court recognizing the need for closer monitoring of pretrial negotiations. “I’m not a big fan of plea bargaining,” he said, “but the least we can do is to clean up the messy way it’s practiced.”

However, Nancy King, a law professor at Vanderbilt University, worried that the court’s rulings would distract states from more important issues. “Ironically, by beefing up the resources devoted to postconviction litigation, the court may have actually made it more difficult for states to provide competent legal assistance to those indigent defendants who should never be convicted in the first place,” she said.

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George Fisher, a professor of law at Stanford, said that at the very least, the decisions were likely to inspire increased caution in defense lawyers, who could now be brought up on charges if they were found to have been lax in their practice during the negotiation phase.

“You can imagine that defense lawyers will want to document much more thoroughly now than perhaps they did before how carefully they warned defendants of all the consequences and all the pleas they turned down,” Professor Fisher said.

But many defense lawyers said they were already careful in negotiating plea deals, and that the actions of the lawyers in the cases considered by the court were exceptional and hardly representative of the profession.

“Most of the people in my office will memorialize plea offers and whether or not they’re rejected,” said Pete Clary, the public defender in Forsyth County, N.C. He said that if he “found out a lawyer had not conveyed a plea offer to a client,” resulting in the client not getting the best deal, “I’d probably fire the guy or girl.”

Steve Banks, attorney in chief for the Legal Aid Society in New York, noted that in 15 states, including New York, prosecutors are not required to turn over their evidence or witness lists to the defense until just before trial, making it difficult for defense lawyers to properly assess the merits of a plea offer.

“Now that the Supreme Court has said that you are entitled to effective assistance at the plea-bargaining stage of the case,” Mr. Banks said, “It’s hard to imagine how prosecutors in states like New York, with antiquated discovery statutes, can continue to withhold critical information.”

But one former prosecutor sided with Justice Scalia.

The implication of the decisions is that defendants should be rewarded with the lesser sentences afforded by plea bargains simply because “the squeezed economics of the system virtually demand that almost all cases be processed by watered-down negotiation rather than by trial,” said William G. Otis, a former c Appellate Division chief at the United States attorney’s office in the Eastern District of Virginia.

“That view of the system is perverse,” Mr. Otis said, “a virtual tip of the hat to cynicism sailing under the flag of practicality.”

A version of this news analysis appears in print on March 23, 2012, on Page A12 of the New York edition with the headline: Stronger Hand For Judges In the ‘Bazaar’ Of Plea Deals. Order Reprints|Today's Paper|Subscribe